Judge Seeking Data Before Ruling On Coed Dorm

A Northampton County judge has decided he needs more information before he can rule on Lafayette College's request to turn the Jessie A. Kirby Dormitory into a coed facility.

To that end, Judge Robert E. Simpson has ordered both the college and the members of the Kirby family who oppose the change to deposit $5,000 with the county clerk of civil courts.

The money will be used to hire experts who will report on the extent of any state or local government involvement in Kirby through financial aid to students; the extent to which any government is involved in Kirby House through tax exemptions, and whether any of Lafayette's women's dorms provide the amenities of Kirby House.

Simpson has scheduled another non-jury trial on the issue for May 17. He already conducted one short non-jury trial on Aug. 25, and viewed the dorm that day and again on Oct. 12.

In 1948, Lafayette benefactor Allan P. Kirby gave "a remarkably elegant and functional dormitory for boys" to the college. The school, which began admitting women in 1971, asked for the change last year.

"We are asked to reform a private charitable gift to a private college, which is allegedly illegal because its benefits are expressly limited to males," Simpson says.

"Thus, the action highlights a clash between two competing fundamental rights: rights to privacy and to private property and equal protection rights."

Simpson said he ordered the experts because it is not clear that the all-male use of Kirby is the type of activity prohibited by the Equal Rights Amendment. "On its face, the restriction does not arise from any action of government, but rather from a private act.

"The extent of the college's involvement in the ongoing restriction is unclear from the current record. Moreover, the extent to which state government has become a joint participant with the college in the perpetuation of the sex discrimination is also difficult to determine."

The judge said he considered whether provisions of the state Human Relations Act would bar continued single-sex use of the dorm. He determined it does not, because a 1991 amendment specifically exempts single-sex dormitories.

In addition, the restrictive use is not impossible or impracticable, so some of the tests for restructuring the terms of a charitable gift are not met in the case.

"Commentators have called attention to the monumental task facing a court asked to evaluate comparative burdens and benefits of a situation alleged to violate the ERA. In this case, we do not enjoy an extensive record, and we lack the assistance of experts who may shed light on comparative burdens and benefits.

"In particular, we lack a thorough, organized architectural evaluation of single-sex dormitories at the college. An evaluation of the physical facilities, the ease of use, and the aesthetic qualities available to men at Kirby Dormitory, and available to women elsewhere, is needed," Simpson said.